Opinion
September 7, 1961 —
October 3, 1961.
APPEAL from a judgment of the county court of Winnebago county: HERBERT J. MUELLER, Judge. Affirmed.
For the appellants there was a brief by Schloemer Merriam, and oral argument by C.J. Schloemer and Leo F. Schlaefer, all of West Bend.
For the respondent there was a brief by Horwitz Regner of Oshkosh, attorneys, and Immell, Herro, Buehner DeWitt of Madison of counsel, and oral argument by Simon Horwitz.
The judgment from which the appeal is taken determined that at the time of James F. Ford's death, October 20, 1960, his domicile was the Alexian Brothers Home in the city of Oshkosh, Winnebago county, Wisconsin, wherefore the county court of Winnebago county has jurisdiction of probate proceedings incident to a document propounded as the last will and testament of the said James F. Ford. Appellants, objectors to the will, contend that at the time of Mr. Ford's death his domicile was in Cook county, Illinois. They submit that the finding of domicile in Winnebago county is contrary to the great weight and clear preponderance of the evidence.
For approximately ten years preceding May, 1960, James F. Ford had resided with his sister Eleanor Lauterjung in Chicago, Illinois. For the last several years of that period Ford had been blind. In May, 1960, Mrs. Lauterjung became seriously ill and Ford could not remain longer in her home. Mrs. Lauterjung's son made several unsuccessful attempts to find suitable quarters for him elsewhere in Chicago. In earlier years Ford had been a resident of an Alexian Brothers Home in Tennessee and by inquiry it was learned that Ford would now be admitted to an Alexian Brothers Home in Oshkosh, Wisconsin. Ford voluntarily moved to that Home May 31, 1960, taking his personal effects with him, including stocks, bonds, and documents of title but leaving other securities which he owned on deposit with the Continental Illinois National Bank Trust Company of Chicago.
Mrs. Lauterjung died June 2, 1960.
For some weeks after Ford entered the Oshkosh Home he expressed a desire to return to Chicago. On June 16, 1960, a brother, Charles M. Ford, arranged to have James admitted to a Lakeside Nursing Home, in Chicago, and made a $20 deposit to protect the reservation until July 1, 1960. However, James never followed up this arrangement but remained in the Oshkosh institution.
In June, 1960, Charles Ford instructed a Chicago attorney to prepare a will for James embodying provisions which Charles told the attorney were James' wishes. Charles told the attorney that James was then in Wisconsin but was soon coming to live with Charles in Chicago and James would sign the will when he got there. The will was thus prepared and delivered to Charles. However, James did not come to Chicago and Charles sent the will to Oshkosh where James and the attesting witnesses signed it.
The will begins, "I, James F. Ford, of Chicago, Illinois, declare . . ." It ends, "In witness whereof, I have hereunto set my hand and seal this 28 day of June, 1960, at Oshkosh, WisconsinChicago, Illinois."
In September, 1960, Charles Ford petitioned the county court of Winnebago county, Wisconsin, to appoint a guardian for James because of James' alleged physical incompetence to have the charge and management of his property. The matter was set for hearing on November 2, 1960. No hearing was held because Mr. Ford died October 20, 1960. A witness, William Gengler, testified at a hearing in the present proceeding that he was attorney for James F. Ford after Ford came to the Alexian Brothers Home and in a conference held two or three days before Mr. Ford's death, Mr. Ford asked Mr. Gengler if the Winnebago county court could appoint a guardian over a citizen of another state. The witness observed that the guardianship proceedings seriously upset Mr. Ford.
Mr. Ford brought most of his personal effects and most of his securities with him when he came to Oshkosh but left some of them in safekeeping in a Chicago bank. A certain Brother Hugh of the Alexian Brothers Home in Oshkosh conducted James Ford's business correspondence for him under James' direction. On October 7, 1960, James dictated a letter to Brother Hugh for transcription and transmittal. Brother Hugh prepared the letter on Alexian Brothers Home stationery, Ford signed the letter, and Brother Hugh sent it to the Chicago bank. The part now material is:
"Kindly forward to me at the above address, which is now my permanent home, the dividend shares and the bill to round out a full share, and will total me a four full share dividend."
Further facts will be given in the opinion.
Without any question James F. Ford's domicile was in Chicago as long as he lived in his sister's home. He was compelled to move out because of the sister's illness, but that remained his domicile until he established a different one.
"A domicile once established is not lost until a new one is acquired. Every one must at all times have a domicile somewhere. Where an actual domicile has once been established, two things are necessary to create a new domicile — first, an abandonment of the old domicile, and second, the intention and establishment of a new domicile. The mere intention to abandon a domicile once established is not of itself sufficient to create a new domicile, for before a person can be said to have changed his domicile, even though he manifests an intention to abandon the old domicile, a new domicile must be shown. 9 Ruling Case Law, p. 553. sec. 18." Will of Eaton (1925), 186 Wis. 124, 133, 202 N.W. 309.
"Two things are necessary to create a new domicile; the physical abandonment of the old domicile and a removal to and an intention to establish a new one." Estate of Morey (1956), 272 Wis. 79, 82, 74 N.W.2d 823.
Of course it is undisputed that on May 31, 1960, Ford moved to the Alexian Brothers Home in Oshkosh, bringing with him most of his possessions, but the evidence is clear that at this time this was temporary refuge without intention to create a new domicile there. This is shown affirmatively by his declaration in his will, June 28th, that his residence was still Chicago and his contemporary search of a nursing home in that city. However, as he became better adjusted to life in the Oshkosh Home he let lapse the opportunity of coming to the Chicago Home which his brother had secured for him, and on October 7th he informed his Chicago bank that the Oshkosh Alexian Brothers Home "is now my permanent home." This is entitled to great weight. It is a written declaration of the intention to remain permanently in Oshkosh. It is subsequent to the earlier statement in his will that, in June, he still considered Chicago his residence, at a time when the reservation in the Chicago home was being held for him.
It is true that appellants produced evidence of a still-later oral statement by Ford which can be interpreted as meaning that he was still a resident of Illinois. But it can also be considered as a suggestion by Ford of a possible means of avoiding the guardianship which threatened him. A written declaration is entitled to greater weight than oral declarations. Will of Eaton, supra, pages 131, 132.
The trial court made a finding of fact that Ford became a resident of Oshkosh from May 31, 1960, and continued until the time of his death. H by this is meant that Ford was domiciled there from May 31, 1960, we cannot sustain that particular finding in respect to the beginning date. But from at least October 7, 1960, the date of Ford's letter to the Chicago bank, the crucial finding that James F. Ford had his domicile in Oshkosh, Wisconsin, at the date of his death is in accord with the great weight and clear preponderance of the evidence. That being so, we must sustain the finding and with it should affirm the judgment.
By the Court. — Judgment affirmed.